GARRETT DONLIN v. PAUL CALDWELL and THERESA CALDWELL.

Introduction

On June 10, 1926, the Home Building Co. of Worcester, Inc. filed a “Plan of Turkey Hill Estates, situated in the Towns of Rutland and Paxton Mass.” at the Worcester County Registry of Deeds (“the plan”). See Ex. 1. It is not, and never has been, an approved subdivision plan, nor does it reflect the current-day reality. The plan shows hundreds of tiny lots and a number of private roadways. With the exception of the main access route — Rutland Road, now paved and re-named Turkey Hill Road — nothing has developed in conformity with the plan. Most of the land is vacant. The land that has been developed — a relatively small number of houses, mostly near the lake — consists of lots grouped into larger, buildable parcels with homes generally begun as summer cottages that have since been winterized and expanded into year-round residences. Some of the plan roadways have been brushed out and rough-graded. Some have been graveled, in part. But most remain “paper streets” at best. [Note 1] One of those streets is Kiyi Trail, shown on the plan as a cross-way between Rutland Road and Potomac Trail. Its western half borders the defendants Paul and Theresa Caldwell’s property on the north, and has been used by the owners of that property since at least 1954 as their driveway, their storage and repair area for trucks, boats, snowplows and snowmobiles, and as a children’s play space, complete with basketball hoop, horseshoe pit, and picnic table. See Ex. 2 (aerial photograph) and Trial Exs. 30-38 & 51 (photographs, over time, of the driveway and the area behind it).

The Caldwells’ property is Block 31, Lots 1-6 on the plan, all in Paxton. [Note 2] See Ex. 3. Plaintiff Garrett Donlin, a developer, has purchased the remaining Paxton lots [Note 3] plus additional land to the east of the plan that borders the lake, all of which he has merged into a single parcel for development purposes. See Ex. 4. [Note 4] He wants to use Kiyi Trail “to service and provide access to a single family residence and such structures and uses customarily accessory thereto” to be located on that merged parcel. Plaintiff’s Stipulation (Mar. 2, 2010). To do so would involve using one of the “plan” lots (Block 32, Lot 16) as a connecting roadway from his proposed lakeside residence to Kiyi Trail.

The issues presented are whether Mr. Donlin may use the western half of Kiyi Trail as an access route (the part occupied by the Caldwells’ driveway, parking, storage and children’s play area) and, if so, whether he can use it to access his non-plan land (parcel “A”). There is also a preliminary question — the ownership of the record fee in that portion of Kiyi Trail — which must be answered to determine if the proper parties are before the court when addressing the parties’ claims for relief.

The case was tried before me, jury-waived, with Mr. Donlin represented by counsel and the Caldwells representing themselves, pro se. Based on the evidence admitted at trial, my assessment of the weight, credibility and reliability of that evidence, and the reasonable inferences I draw therefrom, I find and rule as follows.

Analysis

At issue is Mr. Donlin’s right of access over the western half of Kiyi Trail — the portion immediately to the north of the Caldwells’ property, occupied by their driveway and the vehicles and other objects they park or store behind it. None of Mr. Donlin’s deeds contain an express easement to use Kiyi Trail, nor does the Caldwells’ deed expressly reflect the burden of such an easement. To the extent such an easement exists, it arises solely from the Turkey Hill Estates plan and the deed references to that plan — a so-called “common scheme” easement. [Note 5] See Reagan v. Brissey, 446 Mass. 452 (2006). It is undisputed that Kiyi Trail appears on the plan and that each of the parties’ deeds conveyed their land by reference to the lot numbers on that plan. Those deeds do not, however, describe the properties as “by”, “on”, or “bounded” by Kiyi Trail, and do not refer to Kiyi Trail at all.

Kiyi Trail is shown on the plan as a cross-way between Rutland Road (the main route through the development, now paved and re-named Turkey Hill Road) and Potomac Trail. See Ex. 3. The western half of Kiyi Trail (the part at issue in this lawsuit) is bordered on the south by Block 31, Lots 1-6, owned by the Caldwells since August 30, 1995, and on the north by Lot 15 in Block 30, part of which is in Paxton, part in Rutland. The deeds to those properties from their once-common owner, Home Building Co. of Worcester, Inc. (the original developer, on whose behalf the plan was filed), did not reserve the fee in Kiyi Trail. Thus, under the Derelict Fee statute, the abutting properties own the record fee to its centerline on their side. G.L. c. 183, §58. [Note 6] This is the Caldwells to the south. But Mr. Donlin does not own the Paxton part of Lot 15 to the north.

Mr. Donlin’s claim of ownership to that land derives from a tax taking by the town of Paxton. [Note 7] The taking, and the judgment foreclosing the right of redemption, was to “Paxton Assessors Map 9, Lot 1”, described as “approximately .51 acres of land (vacant).” [Note 8] Paxton Assessors Map 9, Lot 1, is Block 31, Lots 7-12 on the plan — 22,400 square feet, or .514233 acres. [Note 9] The Paxton part of Block 30, Lot 15 is designated “Lot 1A” on Assessor Map 9, with 5,000 square feet (.1148 acres) of its own — clearly a different parcel than “Lot 1” and thus remaining in its last owner of record, Louise Vetrano, or her successors in interest. [Note 10], [Note 11] For the reasons discussed below, the Caldwells may have a claim to some or all of this land by adverse possession. [Note 12] But because the record owner of that land (Ms. Vetrano) is not a party to the case, the merits of the Caldwells’ adverse possession claim against her ownership cannot be determined in this lawsuit. What can be determined is Mr. Donlin’s right of access over the part of Kiyi Trail owned by the Caldwells (the part abutting their property, to the centerline) and such part north of the centerline (owned of record by Ms. Vetrano) as the Caldwells and their predecessors have occupied. I thus turn to that question.

For purposes of this Decision, I assume without deciding that, at the time the Turkey Hill Estates plan was recorded (June 19, 1926), Kiyi Trail was intended as a “common scheme” easement for the use of Turkey Hill Estates property owners. [Note 13] Mr. Donlin, who bought his property in 1984, would now like to use Kiyi Trail in connection with his development plans. The issue thus becomes whether all rights to use its western half were abandoned and extinguished before he acquired his property ownership. The applicable law, and the facts as I find them after trial, are as follows.

An easement is extinguished by “grant, release, abandonment, estoppel or prescription.” Delconte v. Salloum, 336 Mass. 184 , 188 (1937). “Whether there is an abandonment is ordinarily a question of intention.” Id. “Non-use does not of itself produce an abandonment no matter how long continued.” Id. (emphasis added). But abandonment can be inferred from the surrounding circumstances and conduct of the parties; “failure to protest acts which are inconsistent with the existence of an easement, particularly where one has knowledge of the right to use the easement, permits an inference of abandonment.” The 107 Manor Avenue LLC v. Fontanella, 74 Mass. App. Ct. 155 , 158-159 (2009).

“A use of the servient tenement, to have the effect of extinguishing an easement in it, must be wrongful. To be wrongful it must be of such a nature as to give rise to a cause of action in favor of the owner of the easement. To do this it must either interfere with a use under the easement or have such an appearance of permanency as to create a risk of the development of doubt as to the continued existence of the easement.” Delconte, 336 Mass. at 189 (internal citations and quotations omitted). “[T]he actions of the adverse possessor must be irreconcilable with use by any other right holder. In such a situation, the adverse possessor cannot merely make use of the way as others might; she must make exclusive use of the way that prevents all others from exercising their rights over the way.” Gerry v. Biviano, 56 Mass. App. Ct. 1112 (2002), 2002 WL 31698180 at *2 (Rule 1:28 disposition). The maintenance of a parking area in the easement can meet this test, so long as it existed continuously and the parking obstructed the way entirely. Id. at *3. See also Delconte, 336 Mass. at 189 (establishment and habitual use of permanent parking area); Sindler v. William M. Bailey Co., 348 Mass. 589 , 593 (1965) (acquiescence in construction of fence and placing of chain across entrance for 35 years “warrant an inference that [the benefited party] has abandoned its rights to the easement in question.”); Lund v. Cox, 281 Mass. 484 , 492-493 (1933) (“Physical obstructions on the servient tenement, rendering user of the easement impossible and sufficient in themselves to explain the nonuser, combined with the great length of time during which no objection has been made to their continuance nor effort made to remove them, are sufficient to raise the presumption that the right has been abandoned and has now ceased to exist.”); Skipper Realty LLC v. Jerry’s Auto Service Inc., 84 Mass. App. Ct. 1104 (2013), 2013 WL 3778969 at *1 (Rule 1:28 disposition) (plaintiff’s acquiescence in servient landowner’s use of way as parking area for tenants, preventing its use as access to plaintiff’s property, combined with later erection of fence, is “powerful evidence of abandonment”). [Note 14]

The testimony earliest in time regarding Kiyi Trail came from Roland Veaudry, Jr., whose family moved into what is now the Caldwell house in June 1954 when Mr. Veaudry was 14. [Note 15] Mr. Veaudry’s parents bought the property on an installment plan, and received formal title on May 27, 1960 (Block 31, Lots 3-6) and July 28, 1967 (Block 31, Lots 1 & 2). Mr. Veaudry later acquired the property from his parents and subsequently sold it to the Caldwells on August 30, 1995.

The Caldwell house is just a few feet off the northern boundary of Block 31, Lot 1, and its driveway, made of concrete, goes down the center of Kiyi Trail as far as the rear of the house. There are approximately 30 feet between the end of the driveway and the rear boundary of the property. According to Mr. Veaudry, the driveway was concrete in 1954 (it is still concrete) and in the same location as it is today. There was a garage to its right when the Veaudrys moved in, which the Veaudrys used as a workshop. [Note 16] The Veaudrys and their visitors parked their cars on the driveway. [Note 17] This effectively blocked its use by others, and Mr. Veaudry testified unequivocally that, throughout the period of their ownership, no one other than his family used the driveway or traveled through the area behind it, either by vehicle or on foot, without his family’s permission. [Note 18] He would occasionally see people in the woods, but they used another route to get there. [Note 19] The thirty-foot area behind the driveway to the rear boundary of the property was used to park more cars and trucks and store a snowplow, boat, trailer, and children’s toys. There was also a picnic table in that location, used regularly for summer meals. A horseshoe pit was installed on the western side of the driveway. None of these uses was ever challenged or disturbed by anyone while the Veaudrys were there.

The Caldwells have used the driveway and the area behind it in identical fashion since they moved in, just as continuously, with a similar or greater number of vehicles, trailers, toys, and other large objects occupying that space. In addition, Mr. Caldwell repairs cars there. The Caldwells have also placed their own picnic table near the back boundary and added a basketball hoop at the end of the driveway. All this blocks the width of Kiyi Trail to the treeline on its side. [Note 20] With the exception of Mr. Donlin in the incidents described below, the Caldwells too have never seen anyone attempt to access, or come from, the area behind their property using their driveway or any other part of Kiyi Trail.

Mr. Veaudry testified that there were no trails behind the house when his family lived there (1954-1994/5), “just briars.” The eastern part of Kiyi Trail was perhaps passable by foot though the briars, but not by vehicle. Whatever road grading had been done in the area, primarily of Wichita and Potomac Trails, [Note 21] long pre-dated his family’s ownership (a horse-drawn grader had been left in the woods by the side of Potomac Trail but, so far as he could tell, never moved), [Note 22] and everything was now overgrown. The Caldwells’ witnesses gave similar testimony, which I credit. [Note 23] No passable trail existed on the eastern part of Kiyi Trail from at least 1954 up until the time Mr. Donlin began brushing it out in the mid-1980s. [Note 24] In any event, the parked cars, trucks, trailers, boats, snowmobiles and other objects in the Veaudry/Caldwell driveway and in the 30 feet between the driveway and the rear boundary of their property have blocked the use of the western portion of Kiyi Trail (the part in dispute) as any kind of access route — openly, notoriously, continuously, exclusively, and adversely — since at least 1954.

Mr. Donlin argues otherwise, based on his own testimony, the testimony of his wife, the testimony of James Perroni, and the testimony of Pauline Nishan, now 80, and a neighborhood resident for 48 years at the time of trial. [Note 25]

Ms. Nishan and her husband were long-time friends of the Veaudrys. Indeed, Mr. Nishan and Mr. Veaudry went to school together, and Mr. Nishan was a frequent visitor to the Veaudry house. The Nishans lived on the opposite side of Rutland Road/Turkey Hill Road, south of the Veaudry property, and would occasionally walk to the lake from their home (he apparently liked to fish) and sometimes more generally through the woods. Ms. Nishan recalls them going to the lake by way of Turkey Hill Trail (the direct route from their home to the lake, see Ex. 1) and, when walking in the woods, using “the long road” — likely either Wichita Trail, Potomac Trail, or both, relatively clear at that time. [Note 26] Their walks became more frequent when they bought Block 32, Lot 2 in the mid-1980’s — a lot in Rutland on the east side of Potomac Trail, one lot south of Wichita Trail, see Ex. 1 — but not much more frequent. The Nishans never did anything with the lot, and Ms. Nishan considered the investment “a nightmare.”

Beyond this, Ms. Nishan’s testimony was vague and unreliable. She testified about visiting the Veaudrys and, on one occasion, asking them to move their cars so that she and her husband could drive to what she recalls as a pathway behind their house. But I do not believe this. If the Nishans were driving to their lot or the lake, they would have taken their usual, easier routes — Wichita Trail or Turkey Hill Trail. The eastern half of Kiyi Trail was never more than rough graded. Mr. Veaudry, who lived next to it during the same time referenced by Ms. Nishan, testified it was overgrown and impassable — filled with briars. Even Mr. Donlin’s wife Deborah conceded that it required a four-wheel drive vehicle to get through when she first saw it in the mid-1980’s.

Ms. Nishan also testified to another occasion on which, she says, she and her husband drove to the house after the Caldwells bought it and told the Caldwells there was a right of way through their driveway. Ms. Caldwell had no memory of this, and I find it difficult to believe. In any event, according to Ms. Nishan, Ms. Caldwell told them they could not drive there and, when Ms. Nishan looked at the woods behind the house, she had to agree that the route was not driveable. The Nishans did not attempt to walk there because of the Caldwells’ dogs. The Nishans never asked for the dogs to be taken elsewhere.

Ms. Nishan said that her husband and grandchildren would occasionally walk through the driveway on their way to the lake or to go camping in the woods when the Veaudrys owned the house, but I question this. It was not apparent that she had any personal knowledge of this (she did not accompany them). And again, if they did walk through the driveway when the Veaudrys lived there, they did so as friends, with permission. [Note 27] No one else walked that way, and the Veaudry/Caldwell cars and other vehicles parked there blocked any vehicular use. [Note 28]

As noted above, an easement is extinguished when an adverse, irreconcilable, apparently permanent interfering use is made of it by others, and the easement holders acquiesce. See Delconte, The 107 Manor Avenue LLC, Gerry, Sindler, Lund and Skipper Realty, supra. I find that that is what happened here. The easement was extinguished and abandoned by the time Mr. Donlin purchased his property in 1984. Extinguishment and abandonment by blockage occur on the portion blocked. Id. Here, that portion is the entire width of the driveway, all the way to the treeline to its left. Brief interruptions in the blocking — those few occasions when a car was driven elsewhere, temporarily leaving a potential corridor open — did not end the extinguishment since the area occupied by the cars and other objects had “an appearance of permanency as to create a risk of the development of doubt as to the continued existence of the easement,” Delconte, 336 Mass. at 189, and, prior to Mr. Donlin, no one challenged the blockage, The 107 Manor LLC, 74 Mass. App. Ct. at 158-159. The question then becomes whether the extinguishment ended or was abandoned, and the easement somehow reinstated, after Mr. Donlin acquired his property. I find that it was not.

Mr. Donlin testified that he bought his land in 1984 and soon thereafter began “brush hogging” all the ways on that land that were shown on the Turkey Hill Estates plan. His purchases included not only the land shown on Ex. 4, parcels “A” and “B”, but also large tracts to the north near the lake, owned by the Hutchins estate, that had never been part of Turkey Hill Estates. Some of the ways on the plan, he says, although overgrown with bramble bushes, were relatively easy to visualize. [Note 29] Others, he admitted, were difficult to locate, and Potomac Trail was one of these. In Mr. Donlin’s words, it was “hard to figure out where it was,” even after seeing the stone walls and pillars referenced above. He claims he was first on the eastern half of Kiyi Trail in 1984, preparing the land for surveying, [Note 30] but was not frequently there afterwards because the main access way into his land was Wichita Trail and he spent most of his time at the property to its north on the lake — the former Hutchins land to the east of Turkey Hill Estates. See Ex. 1. He says, though, that he walked the entire length of Kiyi Trail, including across the Veaudrys’ driveway out to Turkey Hill Road, at least “once or twice a year” when the Veaudrys owned the property.

Over time, Mr. Donlin divided the land he bought into larger parcels and sold them off. The ones already sold are those on or near the lake (the former Hutchins property), leaving him presently with only “parcel A” and “parcel B” as shown on Ex. 4. Because of his prior sales, he no longer has access over Wichita Trail (a self-created situation) and needs to use either Kiyi Trail or a newly created way from Turkey Hill Road for such access. He has constructed such a new access way during the course of this litigation and currently uses it. [Note 31] He would prefer, however, to use Kiyi Trail. Its eastern half (the portion on his land) became passable by tractor after his initial “brush hogging”, and he testified that he has returned to brush hog it again every five years or so. [Note 32] He claims to have accessed Kiyi Trail on these occasions by using the Veaudry (now Caldwell) driveway, maneuvering his small tractor around the cars and other objects, but this could only have been sporadic at best (according to his testimony, every five years or so), and is inconsistent with, or at least highly modified by, his testimony regarding his need to ask for cars and other objects to be moved on at least two of those occasions.

These occasions were as follows. Mr. Donlin spoke with Ms. Veaudry (Mr. Veaudry’s mother) sometime after 1984, asking her to move her car which was parked in the driveway, thus blocking it. She moved her car as he requested. Clearly this was permissive, and not any kind of acknowledgement that the driveway should remain unblocked, since her car was again in the driveway when he next returned some years later and once again requested it be moved so he could get from the woods to Turkey Hill Road. She once more agreed, and again I find that this was wholly permissive on her part, not a recognition or acknowledgement that Mr. Donlin had any right to insist on its moving. As Ms. Nishan testified, Ms. Veaudry was a “nice person.”

Mr. Donlin came again after the Caldwells had purchased the property. He and his wife would sometimes walk in the area, but did not cross the Caldwell property or walk on the driveway because of the Caldwells’ dogs. He claims to have driven over the driveway with nothing blocking it, but this appears to be the occasion on which he had to move the Caldwells’ picnic table to do so. He claims also that the equipment used to conduct the percolation tests on “parcel A” and “parcel B” used the Caldwells’ driveway, but I am not persuaded that there were any occasions on which the driveway and the area immediately behind it were completely unblocked (Mr. Donlin admitted that there “was always stuff there”), and am sure that these were times when the Caldwells were away and thus unaware of the intrusion. The pictures Mr. Donlin introduced into evidence at trial clearly show the Caldwells’ vehicles and other objects blocking the driveway and the land behind — the western half of Kiyi Trail — with no way to get through without things being moved. The Caldwells confronted Mr. Donlin on the one occasion they saw him trying to use their driveway and went to the police about it.

Mr. Donlin’s wife Deborah testified briefly about her observations of Kiyi Trail. As previously noted, she conceded that, even after her husband brush-hogged its eastern half, it was passable only by a four-wheel drive vehicle. She claims to have driven over the driveway while the Veaudrys owned the property with nothing blocking her way, but I am not persuaded she did so [Note 33] or, at best, did so on more than one occasion and then only with great difficulty. [Note 34] As her husband testified, there was “always stuff there.”

Mr. Donlin also offered the testimony of his contractor, James Perroni, who assisted with the percolation tests referenced above. Mr. Perroni recalls at least one occasion on which he drove over the driveway to the brush-hogged pathway on the eastern half of Kiyi Trail behind it, [Note 35] but did so only at Mr. Donlin’s direction and only after Mr. Donlin had preceded him. He thus could not say whether Mr. Donlin needed to move anything for them to get there, or what it took to move those things. He did not recall seeing anyone at the Veaudry/Caldwell house when he went down the driveway.

I have gone through the testimony and exhibits in detail to assure the parties that I have considered it all, thoughtfully and carefully. But it can be summarized, succinctly, as follows. Kiyi Trail is a way on a plan, never constructed in accordance with that plan, to serve lots never developed in accordance with that plan. Only recently (Mr. Donlin), and in a way at variance with the plan (by combining and reconfiguring lots and adding property from elsewhere), has anyone asserted a need, or even a desire, to use the portion of Kiyi Trail at issue in this case. Over half a century ago, a concrete driveway was put on that part of Kiyi Trail (its western half) to serve the house now owned by the Caldwells. It did not extend any further than the garage, thirty feet short of the property line, and it was not “roughed out” or developed any further than the garage, showing its intent to be used as a driveway, and a driveway only, not the initial part of a connecting roadway. Whatever was done to Kiyi Trail in the woods behind stopped at the Caldwells’ rear property line.

For more than 50 years, the concrete driveway and the area behind it have been used as a driveway and storage area for the Caldwell house, solely and exclusively. The residents have parked their cars there. They have stored their boats, trucks, snowmobiles and snowplows there. They have put their children’s toys and picnic tables there, and their children have played there freely. All of this has blocked its use, completely, and no one went there, to their knowledge, who did not have their permission and cooperation. During the course of that 50 years, on no more than a handful of occasions, people have walked over the driveway to the woods behind. During the course of that 50 years, on even fewer occasions, an all-terrain vehicle has accessed the woods using the driveway, almost always needing to move things to get there. Permission was generally asked and given. When it was not, the intrusions either took place when the Veaudrys or Caldwells were elsewhere and unknowing or, if they were there, resulted in an argument and then a call to the police.

Because I find the easement extinguished, I need not reach the remaining issue in the case — whether, if the easement still remained, it could be used to access Mr. Donlin’s parcel “A” — the part of his land, sought to be served by the easement, that was never part Turkey Hill Estates as shown on the plan from which the easement is implied. I do so, however, for the sake of completeness. The answer is no. Any such use would overburden it. “Private ways are confined in their use to the purposes for which they are granted, and cannot be further extended by the grantees....one who has a right of way appurtenant to a specified lot of land cannot lawfully use it to reach another parcel owned by him to which it is not appurtenant.” Matthews v. Planning Bd. of Brewster, 72 Mass. App. Ct. 456 , 465-466 (2008). Here, the easement arose solely from the plan and thus solely benefited the lots on that plan. See Reagan, supra. It cannot be extended further.

Conclusion

For the foregoing reasons, the plaintiff’s claims are DISMISSED IN THEIR ENTIRETY, WITH PREJUDICE, and it is ORDERED, ADJUDGED and DECREED that whatever easement existed on the western part of Kiyi Trail as shown on Ex. 1, appurtenant to any part of the plaintiff’s land, has been abandoned and extinguished across the width of the defendants’ driveway as far as the treeline to its north.

Judgment shall enter accordingly.

exhibit 1

exhibit 2

exhibit 3

exhibit 4